Hatton v. Ontario Lottery and Gaming Corporation, 2011 HRTO 1227

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Meredith Hatton Applicant

-and-

Ontario Lottery and Gaming Corporation Respondent

DECISION

Adjudicator: Alison Renton

Date: June 27, 2011

Citation: 2011 HRTO 1227

Indexed as: Hatton v. Ontario Lottery and Gaming Corporation

APPEARANCES

Meredith Hatton, Applicant ) No one appearing

Ontario Lottery and Gaming ) Tom Moutsatsos, Counsel Corporation, Respondent )

1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 18, 2009. The Application alleges discrimination on the basis of disability and marital status in employment. As part of her allegations, the applicant submits that during a medical leave of absence, she had “… continuously provided detailed medical reports stating that I am unable to return work and OLG continues to not [accept] this documentation” and that she felt pressured to return to work or her sick benefits would cease. The applicant continues to be an employee of the respondent.

2Initially, the hearing was scheduled for January 20 and 21, 2011, pursuant to a Notice of Confirmation of Hearing. After its issuance, the applicant requested that the dates be rescheduled because she was on pregnancy leave and a Case Assessment Direction (“CAD”) dated January 14, 2011, cancelled those hearing dates. The hearing was rescheduled for June 28 and 29, 2011, pursuant to a further Notice of Confirmation of Hearing dated March 29, 2011.

3Both parties files several Requests for Order During Proceedings (“RFOP”) that were addressed in an Interim Decision dated June 7, 2011 (2011 HRTO 1097). Although the applicant had disclosed medical documentation to the Tribunal, she had not disclosed it to the respondent, claiming it was “privileged”. In the Interim Decision, and amongst other issues addressed, the Tribunal found that the medical documentation the applicant provided to Medisys, the respondent’s third-party disability management company, was arguably relevant to her Application because of her allegations against the respondent. The Tribunal ordered the applicant to produce immediately to the respondent and the Tribunal:

a) copies of all medical documents, including but not limited to, all medical notes, medical letters, medical reports, functional abilities forms, and/or disability-related documents in her possession or control which relate to her Application.

b) copies of all documentation, including medical documentation as noted above, as well as all correspondence, including letters, e-mails, and notes in her possession or control which she provided to Medisys for the purposes of verifying her alleged disability and substantiating her need to be absent from work.

4The Interim Decision also directed the applicant to advise the Tribunal and the respondent, within two business days, whether she consented to Medisys releasing medical documentation that she had provided to Medisys for the period March 23, 2009, to October 26, 2009, to the respondent and the Tribunal and permitting Medisys and its employees to speak about and testify regarding confidential medical information contained in its file concerning the applicant. The Interim Decision stated that if the applicant did not consent or respond within this time period, then the respondent should send a copy of the Interim Decision and its RFOP to Medisys and the Tribunal would schedule a conference call with the parties and Medisys to hear submissions about the Tribunal ordering Medisys to provide the documentation and information requested by the respondent.

5The applicant subsequently advised the respondent and the Tribunal, by email dated June 7, 2011, that she did not consent to Medisys releasing her medical documentation or providing any information to respondent. She did not provide any explanation as to why she withheld her consent.

6The Tribunal issued a CAD dated June 16, 2011, in which it reiterated its direction for the applicant to comply with the production order set out in the Interim Decision and drew the applicant’s attention to sections 43(3)(f) and (9) of the Code which set out the consequences of a party’s failure to comply with an order of the Tribunal.

7Further, the Tribunal noted that a conference call hearing would be scheduled for Monday, June 28, 2011, to hear the parties’ submissions on whether it should order Medisys to produce the documentation and information requested by the respondent and the consequences, if any, of the applicant’s failure to produce the documentation that the Tribunal ordered her to produce. The Tribunal stated that if either party, or Medisys, wished to file additional submissions, facts and/or case law that had not previously been filed with the Tribunal, they were directed to do so electronically, copying the other party, by June 23, 2011. An amended CAD was issued, correcting the date of the conference call hearing to Monday, June 27, 2011. The CAD was issued by email to the parties in light of the postal strike.

8The respondent emailed written submissions dated June 23 to the Tribunal, on which the applicant was copied, as well as copies of case law upon which it intended to rely. The applicant did not further communicate with the Tribunal.

9A Notice of Conference Call, dated June 21, was emailed to the parties scheduling the conference call for 11:00 am on Monday, June 27. The respondent called into the conference call, but the applicant did not. In accordance with its usual practice when a party is not present at the designated start time of a hearing, the Tribunal held down the conference call until 11:30 a.m., with the Tribunal and the respondent remaining on the line until 11:30. The applicant still did not call in or otherwise communicate with the Tribunal.

10At 11:30 a.m., the Tribunal orally dismissed the Application because the applicant failed to attend the conference call hearing. The respondent submitted that the applicant, who is a human resources coordinator, was at work on June 27 and had not indicated to it that she was unable to participate in the conference call hearing. The respondent relied upon its June 23 written submissions, as well as the applicant’s failure to participate in the conference call hearing, in support of its position that the Application should be dismissed, and pointed out that the applicant had failed to comply with the Tribunal’s orders, which prejudiced the respondent’s ability to defend against her allegations.

11As the applicant failed to participate in the June 27, 2011 conference call hearing, the Application is dismissed as being abandoned and the June 28 and 29 hearing dates are cancelled. Accordingly, I do not need to consider the respondent’s other submissions.